Judge's Order Requiring Male Attorney to Wear Socks May Violate the Equal Protection Clause

By now most people have heard about the saga of Todd A. Glickfield, the attorney who was admonished by Dean A. Young, Blackford Circuit Court Judge, for not wearing socks.  In the "Order Directing Proper Attire Be Worn By Todd A. Glickfield," which was distributed to all members of the Blackford County bar, the Judge Young the facts that led to the order:

During a break in the proceedings the Court advised Attorney Glickfield that he was not

Todd A. Glickfield

appropriately dressed as required by Local Rule, and that the Court would insist upon him wearing socks should he choose to present cases in the Blackford Circuit Court in the future.  Attorney Glickfield advised the Court that "I hate socks" and that he's had "this conversation with other judges in other courts," and that unless the Judge of the Blackford Circuit Court could show him applicable "orders or other legal authority" he would continue his habit of appearing sockless in court."

The judge responded by issuing an order detailing the dress code that Attorney Glickfield needed to follow, including that socks be worn.  Most commentators around Indiana and even the country (the story has been picked up nationally) agree, or at least assume, that the judge had the right to set and enforce this dress code in his courtroom. 

But there is a problem.  Rhetorical Paragraph #5 of the order states:

That the Blackford Circuit Court considers socks to constitute a part of "appropriate business attire" for male members of the bar presenting cases before the Court." (emphasis supplied)

In other words, the wearing socks rule doesn't apply to female attorneys who appear in Judge Young's court.

Judge Young may well not be aware of it but earlier this year the Seventh Circuit handed down Hayden v. Greensburg Community Schools in which the Court held a hair length limit enforced by the boy's basketball team violated the equal protection clause when that hair lengthy limit didn't apply to girl basketball players at the school.  In that case, Greensburg Schools pointed out that they were different teams and that if girls played on the boys' team they would be subject to the hair length limit.  That didn't matter to the Seventh Circuit.  Here, the argument of separate teams isn't even available as a defense to the constitutionality of Judge Young's order.  Lawyers, both male and female, appear before the Blackford Circuit Court.

Here is a portion of the Hayden decision:

The Haydens plainly have made out a prima facie case of discrimination. The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys team wear their hair short? Given the obvious disparity, the policy itself gives rise to an inference of discrimination. 

The same thing could be said for socks.  There is no reason for treating male and female attorneys differently in terms of wearing socks other than the adopted rule reflects traditional differences in how men and women dress.   Clearly tradition alone is no longer a sufficient reason to treat the genders differently in imposing a dress code, even in a court of law.

Note:  A special thanks to The Indiana Law Blog for putting the Glickfield order online.